Assange, Ecuador, and the Swedish Legal System

The British Foreign Secretary William Hague was refreshingly clear when he addressed Ecuador’s decision to grant Wikileaks spokesperson Julian Assange asylum to protect him from being extradited to Sweden. He expressed his disappointment at the decision and summarized the case succinctly: ” It is important to understand that this is not about Mr Assange’s activities at Wikileaks or the attitude of the United States of America. He is wanted in Sweden to answer allegations of serious sexual offences.”

The last sentence is important but the fact it expresses seems to have been forgotten by most people, including the Government of Ecuador. The reason why Swedish authorities has asked that Mr. Assange should be extradited has nothing to do with Wikileaks or the work Mr. Assange has done for Wikileaks. In fact, before Wikileaks became a megaphone for Mr. Assange’s personal legal problems I think that most Swedish people, and especially so Swedish media, were very favorable towards the Wikileaks project.

During Mr. Assange’s visit to Sweden – a visit that apparently came about because of the solid reputation of Sweden’s freedom of speech law that Wikileaks had taken an interest in – events occurred that no one except of Mr. Assange and the two women that subsequently accused him of criminal activities can know anything about. What we do know, however, is that the allegations of one of the women – that Mr. Assange had sex with her when she was asleep without her consent – could be characterized as rape under Swedish criminal law. Yes, this falls under the section of rape in the Swedish Criminal Code. From what I understand Swedish criminal law does not differ in this definition of rape from most other countries in civilized legal orders.

These are the allegations, they are serious and they are treated seriously. Rape allegations are always treated seriously, or at least they should be. Sweden has used the European Arrest Warrent (EAW) to bring alleged rapists to the Swedish legal system most if not all years since the EAW came into force and it did the same in this case after Mr. Assange decided he did not want to co-operate fully with the investigation. He is at this time only wanted for questioning on the allegations. Whether the allegations are true is a different story. So is the Wikileaks project and the work Mr. Assange has carried out as a spokesperson for that project. However, as a result of Mr. Assange’s legal strategy in the rape case, the two will now forever be intertwined.

Will Mr. Assange be extradited from Sweden to stand trial in the U.S. if the extradition process goes through as it is supposed to? That is a question no one can answer today. There is no formal request from the U.S. and before there is a formal request it is impossible to assess what the result of such a request would be. (Sweden would never extradite someone that risks the death penalty, for instance.) Also, the construction of the EAW does not allow for Sweden to extradite Mr. Assange to the U.S. without the approval of the U.K. The power to decide over such a request from the U.S. would still be in the hands of the British authorities. Just as it has been for the last years.

What kind of legal system will Mr. Assange face if he is brought here? Sweden’s legal system, as a whole, is solid, fair, and just. But no legal systems are perfect. In fact Sweden is at this very moment in the process of a serious debate on the quality of the legal process, brought about by trustworthy accusations that Sweden’s most well-known serial killer – Thomas Quick – might not be a killer at all, but simply a liar. The result of this debate will hopefully make Sweden an even stronger legal system than it is today.

The upshot is this: Like all legal orders Sweden has its flaws, but it is still, in the words of Foreign Secretary Hague, ” a country with the highest standards of law and where [Assange’s] rights are guaranteed”. You don’t have to take my word, or even the word of Foreign Secretary Hague, on this. According to The World Justice Organization’s Rule of Law Index Sweden ranks among the most robust legal orders in the world, with the lowest levels of corruption and the highest degree of protection of fundamental rights. In fact according to this survey Sweden should probably be awarded the title Rule of Law Champion of the World. Ecuador, by contrast, is not included in the index.

What I don’t understand: if there is enough evidence for the alleged rape, then charges should be brought forward against Mr. Assange and an international arrest warrant has to be issued. Right now he is only considered a witness, so ”innovent-until-proven-guilty” applies. Why is he then sought to be brought back via an international warrant? Why isn’t he questioned wherever he is? There is precedence for the prosecutor to hop on a plane and visit him wherever he is.

I am sorry, the swedish legal system might be OK by and large, but this case definitely doesn’t follow the rules of conduct according to human rights… and to common sense.

He’s not a witness, he’s a suspect. I don’t know why the prosecutor wants to hold the hearing here, but it not generally the case that Swedish prosecutors travel to the preferred place of the victim. The reason is not simply economic, but also that the prosecutor does not have access to coercive measures (if that’s the correct translation of Swedish: ”tvångsmedel”) in another country. in any case it is not up to the suspect to dictate how an investigation should be carried out.

If it were that simple, why is Sweden refusing to guarantee that he will not be handed over to Americans? Sweden lost that credibility when participating in the CIA rendition torture programs for the US.
To be clear, neither women wanted to press charges. He did go to Sweden for questioning and he took a VD test and they cleared him. After he went to London, the police decided to take up the case again, against the women’s wishes.
To me, this makes the whole ‘rape’ scenario quite suspect. Grant him a guarantee publicly, and charge him, if that is ALL there is to it.

Worth noting is that almost all involved in this case are more or less active politicians in the same party and are specialising in gender politics.

The first woman was press secretary in the Christian branch of the social democratic party and very active in gender politics. When she found out that Assange had slept with the other woman, she went to her friend at the Stockholm city police, also active in gender politics in the same party, who made the interrogation. When the second woman told her story, the interrogator thought that what she described was rape and contacted the prosecutor, who immediately arrested Assange in his absence. Someone leaked the arrest to the press. There were four people who knew about the arrest at the time, and it is easy to guess who leaked it.

When the second woman learned that Assange was arrested in his absence she left the room very upset, and has not accepted the statement the prosecutor is basing the arrest (and the European arrest warrant as well) on. She cannot be found in the documents from the investigation since then. The interrogation was not recorded as is the routine in rape cases. The interrogator actually changed the protocol several days after the interrogation.

A second prosecutor dropped the charges, but was taken up again by Claes Borgström, the prime representative of gender politics in the social democratic party who gave the case to Marianne Ny, who had been appointed by the social democratic government to raise doubtful rape cases against men. Claes Borgström said about the second woman that “she could not know that she had been raped, she is not a jurist”. Claes Borgström has a law firm with Thomas Bodström, former minister of justice.

This illustrates the Swedish version of division of power between the political and judicial system.

To put it simply: No one can make such promise in Sweden, because nobody have that power. Politicians that interfere with the courts job will be guilty of ”ministerstyre” (http://en.wikipedia.org/wiki/Ministerstyre). No man or women can make a promise for the legal judgement of a whole country.

In Sweden rape, aswell as other sexual crimes are subject to ”almänt åtal” (rough translation: public charge). The crimes doesn’t require the victim to press charges for the DA to prosecute the offender (the DA is even required to prosecute the defender even in the event that the victim doesn’t want that).

OK, I have taken a deeper look: in Sweden, the suspect is first arrested and then charges can be brought forward. In other countries, first charges have to be brought forward and then a warrant to arrest the suspect is issued.

Is it usual that charges are pressed further when the victim has withdrawn the accusation? From the news articles I have read that the two victims only wanted to have Assange tested for STD but have not made rape accusations. Does having unprotected sex in Sweden already count as rape? Even if the victim doesn’t say it was?

It is not that unusual that charges are pressed even if the victim does not want it to happen. It is for instance not that uncommon that a person that was beat up by his partner does not want a legal process, but if the evidence is solid the prosecutor will still press charges.

”Does having unprotected sex in Sweden already count as rape?” No. But to have sex with someone asleep may be rape. In fact, it is rape, if the sleeping person doesn’t want to have sex.

The categorization of the conduct described in the allegations is a legal thing. Many victims do not know the definition of rape, sexual assault etc. It is the prosecutor that puts a legal label on what is being described. Children, for instance, may be victims of rape even if they voluntarily had sex. (Say a 14 year old and 18 year old.)

OK, thank you.
Assange has been threatened by several Americans, including life-threats. If a swedish judge finds these threats to be credible, could a preliminary, binding judgement be made that Assange will not be handed over to the USA? I know that there has already been a statement that Assange will not be handed over if his life is endangered. But could this guarantee be given in a legally binding way?

This I am not sure of. As far as I know there is no such thing as a legal guarantee that could be given. Even if for instance a Swedish minister would give such a guarantee it would not be binding, since a request for extradition would be handled by the courts and it is illegal for the Government to interfere with a court process.

In the words of Foreign Secretary Hague, ”He faces serious charges in a country with the highest standards of law and where [Assange’s] rights are guaranteed”. Come on. Why should we take Foreign Secretary Hague’s word on this when he does not even understand the distinction between ‘allegations’ and ‘charges’? Even the Swedish Embassy ignored this error and retweeted Hague’s message without correction.

Do not think for a moment that the words of Presidents, Prime Ministers, Secretaries of State and Foreign Ministers will pass over the heads of Lawyers, Jurors, Prosecutors or Judges in any Swedish court case.

Why should we take your opinion into account when you don’t know that sweden doesn’t have a President? There are a King, and he have no formal power. When it comes to practicers of the law, the government are strictly forbiden to interfere. So yes, they can’t do that, and if they do, it would be like an American president having sex with a politic intern if papers would find out, and they will. The jury and judges know this.

About Swedish Law procedures, they are not based on the Common Law that England and US are. So the usual procedure in Sweden are that the suspect is first questioned, the arrested if charges still holds and then formal charges is put forward. In England and US the procedure is the reversed.
So it would be stupid of the prosecutor to go to England, question Mr A. and then get him arrest there. The last interigation has to be done in Sweden.

And Yes, Mr A. are subject to beeing charged with rape.

What might be possible is that the Prime minister or government could overroll an extradiction to US, but even so.
By the way, Sweden are not allowed to extradict Mr A. without approval from England. And England could have extradicted Mr A. already.
So no, there are no more risk for Mr A. to be extradicted to US than it was earlier when he was on GB soil.

I also don’t believe the Swedish claim that they have sufficient evidence to charge. But they could prove me wrong by charging and even sentencing Assange. Their story that ‘they need an interview’ is bollocks. There is NO juridical system that depends on cooperation of the suspect. The verdict depends on evidence!! This because supects can refuse to participate & that is what we see them do always on television (”talk to my lawyer”).

There has not been a trail yet, so how do you ”know” this?
The procecutor hasn’t been able to do their job becuse Mr A. refuses to come and stand on trail to prove that he is innocent, if he now are that.

Well surely there is some way to PARDON someone even if you can’t interfere with the trial? Does no politician have any right to pardon? That’s horrid, IMO, there’s no safety valve on the side of innocence in case of usual circumstances.
No, I do not understand law there. It seems so inflexible as to make it the perfect system to predict and manipulate.